Panel Debates the Future of Terrorism Prosecution

October 02, 2012

Since the September 11 attacks, prosecutions of terrorism cases have ranged from the generally celebrated conviction of 9/11 conspirator Zacarias Moussaoui in 2006 to the 2010 trial of four men sentenced for an attempted attack on a Bronx synagogue—a case fraught with accusations of FBI entrapment. On September 27, 2012, the Center on National Security hosted a panel of government and legal professionals to discuss these and other federal terrorism cases and the implications they have for the future of terror investigations and terror charging in the United States.

The event, “Terrorism Past and Future: A Perspective from the Federal Courts” drew an audience of more than 150 to Fordham Law’s McNally Amphitheatre to hear the opinions of five experts: Fordham Law alumnus Vincent Briccetti ’80, United States District Judge for the Southern District of New York; Justine Harris, Partner at Colson & Harris LLP; Marshall Miller, Assistant United States Attorney for the Eastern District of New York and Adjunct Professor at Fordham Law; John Miller, Senior Correspondent for CBS News; and David Raskin, Partner at Clifford Chance and former leading terrorism prosecutor for the Southern District of New York.

Karen Greenberg, Director of the Center, opened the conversation with a sobering statistic: there have been approximately 350 terrorism or terrorism-related indictments since 9/11. However, in 2012, terrorism indictments have decreased precipitously for the first time in many years. “Something has changed, something is different,” said Greenberg. She invited the panelists to propose their ideas for the unknown catalyst.

David Raskin explained that, before 9/11, bringing terror defendants before Article 3 courts, specifically to the Southern District of New York, was the model; there were no military commissions or tribunals, no extended stays on aircraft carriers for suspected terrorists. “9/11 changed all of that,” said Raskin. He went on to discuss his time in the federal prosecutor’s office for the Southern District of New York. As Chief of the of the Terrorism and National Security Unit, Raskin led the prosecution of Moussaoui and was slated to prosecute Khalid Sheikh Mohammed in federal court before the case was transferred to a military commission in Guantanamo.

“The lasting monument for the Department of Justice in the Moussaoui case is that we finished, and nobody hears from Zacarias Moussaoui anymore because he’s in a Supermax prison in Florence, Colorado,” said Raskin. “I’m not sure the country realized the significance of finishing a case like that.”

Terror cases, Raskin explained, are becoming much more complicated and often the biggest problem is building a case, let alone securing a conviction for a suspected terrorist.

Justine Harris, drawing from her former experience as an Assistant Federal Defender, stressed the importance of distinguishing between different kind of defendants: terror suspects who are aspirational versus operational.

“As a defense attorney, one of my essential roles is to help the system afford my client individualized justice,” said Harris. “There are a whole host of distinctions that need to be made in our courts and in society in order to afford individualized justice.”

Harris discussed the challenges in the federal court system that hamper these distinctions, including what is known as the terrorism enhancement, which greatly increases the length of sentences for defendants convicted of certain terror crimes, and the aggressive use of informants by the FBI.

John Miller, who formerly held leadership positions in the FBI and Office of the Director of National Intelligence, spoke about the change in how cases are brought to trial: “Nobody’s rewritten the standards of what case to bring. I think they’ve really evolved in how to bring the cases: how they’re packaged and delivered before they get to a jury.” According to Miller, right after 9/11, terrorism-related cases were often brought to trial for suspects who were only talking about or conspiring to commit terrorist acts. Now law enforcement agencies and prosecutors understand that, to get a conviction from a jury, it’s not enough that suspects are thinking or talking about an act, they must be actively training or attempting the act.

The panel continually made distinctions between terror cases growing from sting operations (i.e., involving informants) and those whose roots were more organic and uncontrolled by law enforcement agencies. Marshall Miller suggested that people not think of terror cases as fitting into one or the other category; instead, he encouraged the audience to consider terror cases along a spectrum of more or less serious law enforcement involvement.

Judge Briccetti spoke of his work as one of the defense attorneys for James Cromitie, one of the Bronx synagogue plotters, and of his admiration for the prosecutorial skill of Raskin, who represented the United States in that same case.